Copyright Notes

A copyright can be
succinctly described as “a limited duration monopoly” (Passman,
2003, p. 193). Moser (2006) teaches that copyright law offers owners and
creators of intellectual property “the right to control and profit from the use
of their creations” (p. 1). For a detailed discussion regarding the basic
aspects of a copyright, please visit the U.S. Copyright Office circular
entitled Copyright Basics.

If the work is
original, the creator owns a copyright as soon as they have produced a tangible
version of the work. In other words, one does not have to file the work with
the copyright office in order to own a copyright.

If one cannot
afford or does not want to file a copyright, it is strongly suggested that
those individuals or groups have a notary public stamp the work with an
official seal. This may hold up in court as long as the claimants can produce
the paperwork.

The “poor man’s
copyright”, typically sending yourself a certified correspondence containing a
copy of the work, is sometimes used by copyright claimants. There are many
problems with this type of copyright. One could loose the materials, the
correspondence could be defaced or destroyed due to an act of God or a hungry
dog, and/or the envelope could come open after many years. In any of these
cases, it would be much more difficult to prove ownership in a court of law.
Intellectual property can sometimes be very valuable. Thus, it is best to
protect it by registering a copyright with the U.S. Copyright Office.

A copyright owner
owns a copyright for life plus 70 years. (This is the Sony Bono Copyright
Extension Act of 1998.)

If you want to
have indisputable proof of copyright, it is probably most prudent to file a
copyright form (CO) with the Copyright Office. This grants claimants more
protection than a self-addressed stamped envelope or a piece of sheet music in
a drawer.

As detailed in the U.S Copyright
Office circular entitled Copyright Basics
(2008), a copyright grants you the exclusive right to:

Reproduce the work in phonograph recordings.

Distribute copies of the work by sale, lending,
lease, or rental.

Perform the work publicly.

Make derivative works based on the original work.

Display the work publicly.

To perform a recorded musical work via digital audio
broadcasts.

There are six major exceptions to
the copyright rule. These are called compulsory licenses. Compulsory means you
must issue these licenses to someone who wants to use your work whether you
like it or not.

Section 115 of the Copyright Act
provides that you must issue a compulsory license to

Anyone else who wants to record it
on a phonograph record if it has already been recorded and:

The song is a non-dramatic work

The recording has been distributed publicly in
phonorecords

The new recording will be in phonorecords only.

The current standard
mechanical royalty rate for the use of a song on a phonograph recording is 9.1
cents for five minutes or less and 1.75 cents for every additional minute or
fraction of minute. Any song exceeding the five-minute threshold is rounded up
to the next minute. For example, a song of length 5:01 is treated as a
six-minute song, songs of length 6:01 are treated as seven-minute songs, and so
forth. An excellent mechanical royalty calculator is available at the Harry Fox Agency
website.

Example: a song lasting 7:02 will receive:

.0175 * 8 = $ 0.14 = 14 cents

Length of song

Roundoff

Computation

Total

5:01 – 6:00

6

6 * .0175

$0.105 = 10.5 cents

6:01 – 7:00

7

7 * .0175

$0.1225 = 12.25 cents

7:01 – 8:00

8

8 * .0175

$0.14 = 14 cents

8:01 – 9:00

9

9 * .0175

$0.1575 = 15.75 cents

9:01 – 10:00

10

10 * .0175

$0.175 = 17.5 cents

10:01 – 11:00

11

11 * .0175

$0.1925 = 19.25 cents

11:01 – 12:00

12

12 * .0175

$0.21 = 21.0 cents

12:01 – 13:00

13

13 * .0175

$0.2275 = 22.75 cents

13:01 – 14:00

14

14 * .0175

$0.245 = 24.5 cents

Controlled Composition Rates for 2004-2006

Length

Statutory

Controlled %

Controlled Composition Rate

5

$0.0850

0.75

$0.0638

6

$0.09900

0.75

$0.0743

7

$0.11550

0.75

$0.0866

8

$0.13200

0.75

$0.0990

9

$0.14850

0.75

$0.1114

10

$0.16500

0.75

$0.1238

11

$0.18150

0.75

$0.1361

12

$0.19800

0.75

$0.1485

13

$0.21450

0.75

$0.1609

14

$0.23100

0.75

$0.1733

Statutory Mechanical Rates 2006

Artist

Title

Length

Roundoff

Rate

Total

MSQ

Thank You

5:01 - 6:00

6

0.01750

$0.10500

MSQ

Rice & Beans

6:01 – 7:00

7

0.01750

$0.12250

MSQ

Carisi Quartet #1

7:01 – 8:00

8

0.01750

$0.14000

MSQ

Mambo Influenciado

8:01 – 9:00

9

0.01750

$0.15750

Coltrane

Once In A While

9:01 – 10:00

10

0.01750

$0.17500

Coltrane

Afro Blue

10:01 – 11:00

11

0.01750

$0.19250

Miles Davis

Joshua

11:01 – 12:00

12

0.01750

$0.21000

Coltrane

Traneing In

12:01 – 13:00

13

0.01750

$0.22750

MSQ

Scenes From the Hood

13:01 – 14:00

14

0.01750

$0.24500

Controlled composition rates 2006

Length

Statutory

Controlled %

Controlled Composition Rate

Length

Statutory

Controlled %

Controlled Composition Rate

5

$0.0910

0.75

$0.0682

6

$0.10500

0.75

$0.0788

7

$0.12250

0.75

$0.0919

8

$0.14000

0.75

$0.1050

9

$0.15750

0.75

$0.1181

10

$0.17500

0.75

$0.1313

11

$0.19250

0.75

$0.1444

12

$0.21000

0.75

$0.1575

13

$0.22750

0.75

$0.1706

14

$0.24500

0.75

$0.1838

A composer can try to charge more for the first recording of
a song. Unfortunately, earning a signing bonus or additional mechanical royalty
is possible in very rare cases when there exists competition for the use of a
particular composition.

Foreign mechanical rates vary from country to country and
are usually a percentage based on the wholesale price otherwise known as PPD or
Publishers Price to Dealers.

If I assign my copyright in a song to a publisher, can I
ever get it back?

Yes. Regardless of anything in
your songwriter agreement with the publisher, a work not made for hire that was
assigned by you on or after January 1, 1978 can be reclaimed by you (or your
copyright-entitled heirs) 35 years after the work is published or 40 years
after the assignment, whichever is earlier.

The law specifies the mechanics of
giving notice to the publisher in order to accomplish this.

A work becomes “public
domain” after your copyright expires. That means anyone can perform or
record it without paying a fee.

US Copyright Historical Dates and Amendments

1787: U.S. Constitution

According
to Article I, Section 8, Clause 8 of the U.S.Constitution, "the
Congress shall have power . . . to promote the progress of science and useful
arts, by securing for limited times to authors and inventors the exclusive
right to their respective writings and discoveries."

The First Congress implemented the
copyright provision of the U.S. Constitution in 1790. The Copyright Act of
1790, An Act for the Encouragement of Learning, by Securing the Copies of Maps,
Charts, and Books to the Authors and Proprietors of Such Copies, was modeled on
the Statute of Anne (1710). It granted American authors the right to print,
re-print, or publish their work for a period of fourteen years and to renew for
another fourteen.The law was
meant to provide an incentive to authors, artists, and scientists to create
original works by providing creators with a monopoly. At the same time, the
monopoly was limited in order to stimulate creativity and the advancement of
"science and the useful arts" through wide public access to works in
the "public domain." Major revisions to the act were implemented in
1831, 1870, 1909, and 1976.

A major
revision of the U.S. Copyright Act was completed in 1909. The bill broadened
the scope of categories protected to include all works of authorship, and
extended the term of protection to twenty-eight years with a possible renewal
of twenty-eight. The Congress addressed the difficulty of balancing the public
interest with proprietor's rights:

"The main object to be desired in
expanding copyright protection accorded to music has been to give the composer
an adequate return for the value of his composition, and it has been a serious
and difficult task to combine the protection of the composer with the
protection of the public, and to so frame an act that it would accomplish the
double purpose of securing to the composer an adequate return for all use made
of his composition and at the same time prevent the formation of oppressive
monopolies, whichmight be founded
upon the very rights granted to the composer for the purposeof protecting his interests" (H.R.
Rep. No. 2222, 60th Cong., 2nd Sess.,p. 7 [1909]).

1976: Revision
of the U.S. Copyright Act

The 1976
revision was undertaken for two primary reasons.First, technological developments and their impact on what
might be copyrighted, how works might be copied, and what constituted an infringement
had to be addressed. Second, the revision was undertaken in anticipation of
rules set at the Berne Convention.
The U.S. wanted to adhere to the guidelines proposed at the Berne Convention.
It was felt that the statute needed to be amended to bring the U.S. into accord
with international copyright law, practices, and policies. The 1976 act preempted
all previous copyright law and extended the term of protection to life of the
author plus 50 years (works for hire were protected for 75 years). The act
covered the following areas: scope and subject matter of works covered,
exclusive rights, copyright term, copyright notice and copyright registration,
copyright infringement, fair use and defenses and remedies to
infringement.With this revision,
for the first time the fair use and first sale doctrines were codified, and copyright
was extended to unpublished works. In addition, a new section was added,
section 108, that allowed library photocopying without permission for purposes
of scholarship, preservation, and interlibrary loanunder certain circumstances.

In addition to
section 108, section 107 is important to libraries because it contains an
exception to the exclusive rights of owners to make and distribute copies of
their works. It states that "the fair use of a copyrighted work, including
such use by reproduction in copies or phonorecords or by any other means
specified by that section, for purposes such as criticism, comment, news
reporting, teaching (including multiple copies for classroom use), scholarship,
or research, is not an infringement of copyright." To determine whether
the use of a work is a fair use, the following four factors are to be
considered: purpose and character of the use, nature of the copyrighted work,the amount
and substantiality of the portion used in relation to the whole,and the effect of the use on the
potential market. See Title 17
of the U.S. Code.

1976: Classroom Guidelines

In addition to legislative reforms,
private negotiations between owners and users of copyrighted materials resulted
in guidelines for classroom and educational use as well as reserve room use.
These guidelines were not part of the statute but were included in the Housereport
accompanying the 1976 act. The 1976 "Agreement on Guidelines for Classroom
Copying in Not-for-Profit Educational Institutions with Respect to Books and
Periodicals" was adopted by thirty-eight educational organizations and the
publishing industry. According to the text of the guidelines, the purpose was "to
state the minimum and not the maximum standards of educational fair use under
section 107 of the [Copyright Act of 1976]. The parties agree that the
conditions determining the extent of permissible copying for educational
purposes may change in the future; that certain types of copying permitted
under these guidelines may not be permissible in the future; and conversely
that inthe
future other types of copying may be permissible under revised
guidelines."

1998: Digital MilleniumCopyrightAct

President William Jefferson Clinton signed the Digital
Millennium Copyright Act (DMCA) into law on October 28, 1998 (P.L. 105-304).
The law's five titles implemented the WIPO Internet Treaties; established safe
harbors for online service providers; permitted temporary copies of programs
during computer maintenance; made miscellaneous amendments to the Copyright
Act, including amendments that facilitated Internet broadcasting; and created sui generis protection for boat hull
designs. A controversial title establishing database protection was omitted by
a House-Senate Conference.

Among the most
controversial provisions of the DMCA is Section 1201. According to Jonathan
Band of Morrison & Foerster, LLP, Section 1201
"prohibits gaining unauthorized access to a work by circumventing a
technological protection measure put in place by the copyright owner where such
protection measure otherwise effectively controls access to a copyrightedwork.
This prohibition on unauthorized access takes effect two years after enactment
of the DMCA." Over the next two years, the Librarian of Congress conducted
a rulemaking
proceeding to determine appropriate exceptions to the prohibition. Additional
rulemakings will occur every three years.